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Defences in Tort: Case Readings + PQ with tips for Answers for MA law....

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Case Reading: Jackson v Murray [2015] UKSC 5: [Contributorily negligent] Facts: 

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The claimant, a 13-year-old child, suffered severe, life-changing injuries after being hit by a car when she ran into the road after alighting from her school bus. The driver of the car was liable in negligence. He was travelling at about 50 mph. He did not slow down. o (Despite it being clear it was a school bus)

Held: 

The trial judge found the ‘principal cause’ of the accident was the ‘reckless folly’ of the claimant: o either she did not look before crossing the road or, o having looked, she failed to identify and react sensibly to the presence of the car in close proximity.  In light of this, she was contributorily negligent and her damages were reduced by 90 per cent, reduced to 70 per cent on appeal.

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The Supreme Court allowed her appeal, by a majority. It found the parties to be ‘at least equally as blameworthy’ (at [43]), o increasing the claimant’s award to 50 per cent of the agreed damages (amounting to a reported £1.1 million).  While there is no demonstrably correct apportionment—different judges will take different views on what is ‘just and equitable’ o meaning that the decision is ‘inevitably a somewhat rough and ready exercise ... [and] it follows that those differing views should be respected, within the limits of reasonable disagreement’ (Lord Reed at [28]), o In this case, the views of both the Lord Ordinary and Extra Division judges fell beyond these limits, hence the majority’s increase of the claimant’s award.

Notes: 

There were two central questions in Jackson. o (1) How should responsibility be apportioned? o And what principles should govern the review of an apportionment by an appellate court?  There was agreement among the justices (1) should be answered ‘in light of the respective causative potency of the parties’ acts o + their respective blameworthiness and that an appellate court should only alter the assessment of the court below where the court ‘has manifestly and to a substantial degree gone wrong’ (at [46]).  However, as the split decision demonstrates, these principles allow for considerable differences of opinion.

1. What are the conditions that must be fulfilled for a defence of contributory negligence to be successful?  Section 1(1) of the Law Reform (Contributory Negligence) Act 1945:

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states that a court can reduce the claimant’s damages by whatever amount seems just according to their share in responsibility for the damage.

In order for the defence to be raised, three questions need to be addressed: o (1) Did the claimant fail to exercise reasonable care for their own safety? o (2) Did this failure contribute to the claimant’s damage? and o (3) By what extent should the claimant’s damages be reduced?

2. How did lower courts apportion blame between the claimant and the defendant?

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The lower courts apportioned the blame as her contributory negligence at 90 per cent. o The Lord Ordinary also found that the main cause of the accident was the appellant's "recklessness" in attempting to cross the road without taking proper care to check that it was clear.

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The respondent was therefore only 10% to blame. o Lord Ordinary found that the respondent had failed to drive with reasonable care  He ought to have kept a proper look-out and identified the bus as being a school bus  The Lord Ordinary also found that he had failed to modify his driving at 50mph.

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The Extra Division apportioned the blame down to 70%: o (1) The pursuer was only 13 at the time of the accident.  While at 13 she was old enough to understand the dangers of traffic, a 13 year old will not necessarily have the same level of judgment and self- control as an adult.  She was required to take account of the defender's car approaching at a fair speed, 50 mph, in very poor light conditions with its headlights on.

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(2) Greater stress should have been placed on the actions of the defender. o He was found to have been driving at excessive speed and not to have modified his speed to take account of the potential danger presented by the minibus. o The hazard lights were on. (3) wrong to describe the actions of the pursuer as ‘an act of reckless folly’. o Those actings were clearly negligent, but recklessness implies that the pursuer acted without caring about the consequences.

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(4) the causative potency of the parties' actions must be taken into account. o A car is potentially a dangerous weapon, and accordingly the attribution of causative potency to the driver must be greater than that to the pedestrian. o the Lord Ordinary held that the pursuer would have escaped the accident had she had an additional 1.12 seconds available.  That suggests that the defender's excessive speed was causally significant.

3. How did the Supreme Court justify its apportionment of blame?  The potential “destructive disparity” between the parties could be taken into account as an aspect of blameworthiness.  The court had consistently imposed a high burden upon the drivers of cars, to reflect the potentially dangerous nature of driving. 

it is not possible for a court to arrive at an apportionment which is demonstrably correct. o The problem is not merely that the factors which the court is required to consider are incapable of precise measurement.

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In other words, in the absence of an identifiable error, the appellate court must be satisfied that the apportionment made by the court below was not one which was reasonably open to it. o The Extra Division identified an error on the part of the Lord Ordinary in categorising the pursuer's conduct as reckless.  The Extra Division provided only a very brief explanation of their own apportionment of 70% of the responsibility to the pursuer, at para 28: o “We nevertheless recognize that the major share of responsibility must be attributed to the pursuer, because her negligence was both seriously blameworthy and of major causative significance.”  The Extra Division had however already stated, at para 27: o “the defender's behaviour was culpable to a substantial degree”.  They had also stated, at para 28: o “the defender's excessive speed was causally significant” o “the attribution of causative potency to the driver must be greater than that to the pedestrian”.

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The Highway Code advises drivers that “at 40 mph your vehicle will probably kill any pedestrians it hits”.

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In the present case: o the causation of the injury depended upon the combination = o + the pursuer's attempting to cross the road when she did o + the defender's driving at an excessive speed and without keeping a proper look-out.

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As it appears to me, the defender's conduct played at least an equal role to that of the pursuer in causing the damage and was at least equally blameworthy.

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Lord Hodge (dissenting): o Not to look or knowingly to run into the path of the car displayed a very high degree of carelessness.  On those findings I might have concluded that the defender was one-third responsible and the pursuer two-thirds. Morris v. Murray [1991] 2 W.L.R. 195 [Voluntary Assumption of Risk]

Morris v Murray [1991] CA: Facts:  After spending an afternoon drinking, during which Murray, the defendant, had consumed the equivalent of over half a bottle of whisky,  he and the claimant (Morris) decided to take Murray’s light airplane for a spin.  The claimant drove to the airfield and helped to prepare the plane for take-off.  Shortly after take-off the plane crashed, killing the defendant and seriously injuring the claimant.  The defendant’s estate met Morris’s claim for compensation with the defence that he had either voluntarily assumed the risk of injury or was contributorily negligent. Held:  The Court of Appeal held that Morris had voluntarily assumed the risk of injury.  He was not so drunk as to be unable to appreciate the extent and the nature of the risks involved and had willingly embarked upon the flight knowing that Murray was so drunk that he was very likely to be negligent. 

Morris brings out the difficulty in identifying what is meant by consent.

1. What are the conditions that must be fulfilled to successfully raise the defence of consent?

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(1) The defence applies where the claimant consents to the specific harm caused by the defendant and (sometimes) where they have consented to the risk of that harm. o OR  If I willingly put myself into a dangerous situation. o My claim for any injuries I then suffer may well be defeated on the basis that I voluntarily undertook the risk of such injuries. o The first version (the claimant consents to the specific factual harm caused or the risk run)

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the defendant must show that the claimant did indeed consent to the harm which in turn requires that they were aware of the risk of that injury.

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In such cases it is necessary to show that the claimant at the material time: o (1) knew the nature and extent of the risk of harm; and o (2) voluntarily agreed to it (Morris v Murray [1991] at 18).

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It is not enough that a reasonable person might have been aware of the risk o the particular claimant must know and, importantly, agree to it.  ‘A complete knowledge of the danger is in any event necessary, but such knowledge does not necessarily import consent’ (Dann v Hamilton [1939] at 515).

2. Is the defence of consent easy to establish, or is it restrictive?  ‘The plaintiff himself had been drinking, but it does not appear to have been suggested at the trial, nor was it suggested in argument before us, that the plaintiff had had so much drink that he was not capable of agreeing to accept the risk of injury.’ Restrictive: to establish whether someone was ‘drunk enough’ to consent to injury, which is common in these cases, this will be hard to prove. To establish that someone was aware and then consented to this risk is not clearly measurable and so has to turn on the facts of the case. There is also not a large body of case law to work from. 

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3. What are the consequences of a successful invocation of the defence of consent?  It is a complete defence. o This means that where it is made out it will defeat the claim and no damages will be payable.  In this case, therefore, he was to be taken to have fully accepted the risk of serious injury and implicitly discharged the pilot from liability for negligence in relation to the flying of the aircraft Patel v Mirza [2016] UKSC 42 [Illegality // Not a Tort Case] Facts:  

The appellant (M) appealed against an order that he repay £620,000 paid to him by the respondent (P) pursuant to an agreement between them. P had given M the money to bet on a bank's share price using insider information, and the agreement amounted to a conspiracy to commit the offence of insider dealing.

Held:  

The appeal was dismissed unanimously, although the reasoning was by 5-4 majority. Lord Toulson, for the majority, held:

based on authority, a claimant such as the respondent who satisfied the ordinary requirements of a claim for unjust enrichment, should not be debarred from enforcing his claim by reason only of the fact that the money was paid for an unlawful purpose. o There may be rare cases where the enforcement of such a claim might be regarded as undermining the integrity of the justice system, but there are no such circumstances in this case.  The minority concluded there was no inconsistency in permitting a party to an illegal arrangement to recover any sum paid under it, so long as restitution was possible. o

Reasoning:  There were two policy reasons for the common law doctrine of illegality as a defence to a civil claim: o a person should not be allowed to profit from his own wrongdoing o the law should be coherent, not self-defeating, and should not condone illegality.  In assessing whether the public interest would be harmed in that way, it is necessary to consider o a) the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim o b) any other relevant public policy on which the denial of the claim may have an impact o c) whether denial of the claim would be a proportionate response to the illegality. Stoffel & Co v Grondona [2020] UKSC 42 Principle:  The application of this trio of considerations (in Patel v Mirza) should not be a mechanistic process. o Accordingly, the court will identify the policy considerations at stages (a) and (b) of the trio at a relatively general level.  The court’s task is to establish whether enforcing a claim that is tainted with illegality would be inconsistent with the policies to which the law gives effect or, where the policies compete, to decide where the balance lies. o The court is not required to evaluate the underlying policies themselves. 

If, after it has examined the policy considerations at stages (a) and (b), the court determines that the claim should not be barred by the illegality defence, there will be no need for it to go on to consider proportionality. o This is because the claim will be allowed, so there is no risk of disproportionate harm to the claimant by refusing relief to which he or she would otherwise be entitled.

1. What factors should a court consider when determining whether a claimant should be denied recovery because of the illegality of their conduct?

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In assessing whether the public interest would be harmed in that way, it is necessary to consider o a) the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim o b) any other relevant public policy on which the denial of the claim may have an impact o c) whether denial of the claim would be a proportionate response to the illegality.

2. What guidance does Stoffel v Grondona provide regarding the application of the test in Patel v. Mirza?  The application of this trio of considerations (in Patel v Mirza) should not be a mechanistic process. o Accordingly, the court will identify the policy considerations at stages (a) and (b) of the trio at a relatively general level.  The court’s task is to establish whether enforcing a claim that is tainted with illegality would be inconsistent with the policies to which the law gives effect or, where the policies compete, to decide where the balance lies. o The court is not required to evaluate the underlying policies themselves.

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If, after it has examined the policy considerations at stages (a) and (b), the court determines that the claim should not be barred by the illegality defence, there will be no need for it to go on to consider proportionality. o This is because the claim will be allowed, so there is no risk of disproportionate harm to the claimant by refusing relief to which he or she would otherwise be entitled

3. What are the consequences of a successful invocation of the defence of illegality? 

The claim will be barred if the illegality defence is successfully invoked. PROBLEM QUESTION

John and Tony went out drinking one evening after watching a football match. They broke into and stole a car and travelled to a public house in it. Both John and Tony drank heavily that evening. Shortly after leaving the pub, John lost control of the car and crashed into and killed Margaret, a pedestrian. John was unhurt in the accident but Tony, who was not wearing a seatbelt at the time, suffered head injuries which resulted in personality changes. John was taken into police custody after the accident and left in a cell to sober up. The next morning it was discovered that he had committed suicide. Because of pressure from work, no officer had checked his cell for over six hours.

Tony’s head injuries resulted in him becoming increasingly aggressive and violent. Peter, the doctor treating him, was aware of this but chose not to prescribe any drugs to lessen the problem as he was concerned about the possible side effects. Unfortunately, Tony got into a dispute with Ken, a traffic warden, a fight ensued and Ken was killed. Tony was convicted of manslaughter as a result. Discuss the possible liabilities in tort. John v Police:  Is there any illegality in this case? No, not the context of the crime.  Not consent.  Contributory Liable: o Did they contribute, of course. o Causal contribution is moore complex, analogous to St. George v Home office.  Do they fall in a chain of causation? Tony: Part 1: The head Injury Via Car Crash  Tony v John: o Defences:  Contributory Negligence for not wearing a seatbelt (Froom v Butcher)  Due to him having no seatbelt on, unlike John who was unhurt, he suffered head injuries.  15% reduction.  No consent, it's a traffic accident.  Illegality:  They stole the car and so if they had not there would be no crash.  Drunk driving is also illegal.  Patel v Mirza:  In assessing whether the public interest would be harmed in that way, it is necessary to consider  a) the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim  b) any other relevant public policy on which the denial of the claim may have an impact  c) whether denial of the claim would be a proportionate response to the illegality.  (A) this consideration is very strong, the purpose will definitely be enhanced by denying the claim.  (C) Is it disproportionate? Pitts v Hunt, probably not be disproportionate at all. 

Tony v Doctor: o Illegality:  The reason for prohibition, to stop people killing.

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Policy based decisions could arise from this decision Would this be a disproportionate consequence?  You shouldnt be able to claim for losses from criminal law through private law.  Illegality would be successful and the claim would fail....